T. Gorton

Mr. GORTON

Mr. GORTON. I yield the floor.

Mr. GORTON. Madam President, I note the presence on the floor of Senator Campbell, who is the chairman of the Committee on Indian Affairs. He and I and Senator Stevens, Senator Inouye, Senator Domenici, and Senator McCain have had extensive discussions over sections 118 and 120 of this bill, both of which relate to appropriations for or conditions under which Indian tribes operate in our American system. Both are of considerable importance. We have reached agreement with respect to the bill and with respect to what will take place after this bill has passed. In that connection, I think it will be a matter of some intense relief to many of my colleagues that what we are going to do is not require a rollcall vote at this point. So it does seem to me, in the absence of any Member here who is willing to send up an amendment that will require a rollcall vote, that we should go through this matter. Two of the Senators are present on the floor. I believe others are coming. With that, I yield the floor and hope that the Chair will recognize Senator Campbell. Mr. CAMPBELL addressed the Chair.

Mr. GORTON. I move to lay that motion on the table. The motion to lay on the table was agreed to. Excepted Committee Amendment Beginning on Page 52, Line 16, as Amended

Mr. GORTON. Mr. President, in the interests of clarity in dealing with two related but distinct issues, I have asked, and the Senator from Colorado has agreed, to deal separately with two amendments on his part to sections 118 and 120. So, while most of the speakers have talked about each, to this point, now, before we vote on the proposal of the Senator from Colorado, I am going to address only section 118, the section that calls, in the form in which it was reported by the Indian Affairs Committee, for a study not only of the needs of Indian communities across the land but the resources available to those Indian communities to support, in whole or in part, their governmental entities. These tribal priority allocations, in the amount of just over three- quarters of a billion dollars, are directed at the activities, on the broadest possible scale, of the self-governing Indian tribal organizations all across the United States, numbering several hundred in total. And there are, it seems to me, two distinct questions even as we deal with this appropriation of more than three-quarters of a billion dollars of the money of all of the taxpayers of the United States. The first is: Is the historic distribution of money from this account to the various Indian tribes done in a fair and rational manner? And, if not, what can be done to improve that method of distribution? The second and quite distinct question is whether or not full support of Indian tribal governments is a permanent duty of the people of the United States; a form of entitlement or a matter of discretion in which the people of the United States, in addition to encouraging the development of self-governing institutions, are also entitled to demand on the part of successful Indian governments an increasing duty of self-support of these governing institutions--the tribal legislatures, the court systems, the police systems, and the like, systems that in our Federal system are paid for by the people of the United States in connection with this Congress, the people of the States with their legislatures, and the people of cities, counties, and towns with respect to their governing institutions. And we ran into opposition in connection with each of these; a protection of the status quo in connection with each. I took over the chairmanship of this subcommittee 2 years ago, and for 2 years asked the Bureau of Indian Affairs, when it justified its budget, about the formula through which it distributed its moneys to Indian tribes, without getting a satisfactory answer. Asked whether or not it had any ability to determine the relative needs of the varying tribes in the United States, the reluctant, ultimate answer was, no, the Bureau of Indian affairs didn't have that kind of information, did not know in any detail the income of tribal governments through gaming, through gambling operations, through natural resource extraction, through rental of its properties and the like. Moreover, it became quite clear that the Bureau of Indian Affairs didn't care to get that information. The reason that the Bureau of Indian Affairs doesn't really care about getting that information is that it does, in fact, believe that these payments are a permanent entitlement, a permanent burden on all of the other taxpayers of the United States, and that, therefore, while perhaps an examination of needs is appropriate, an examination of resources is not appropriate in any respect whatsoever. With both of those propositions I disagree. While section 118 that exists in the bill today does not change the system and require a mandated distribution on the basis of a system of needs, which of course implies something about the resources that cover these needs on the part of each individual tribe, it became evident that there is so much disagreement in Indian country with even a determination of the facts on which we can make a later determination of needs and resources that section 118 was unacceptable. The proposal that Senator Campbell has made, and with which I agree, deals rather narrowly with the distribution of the money in this appropriations bill, increased by something more than $75 million over the current year, and most particularly with the way in which any excess over last year's distribution and over a formula already developed in the Bureau of Indian Affairs will be made. In that connection, it is a significant step and it is something with which I agree. Because it is insufficient, however, because it doesn't even mention either needs or resources, in my view something else very significantly is needed. Before I get into that, however, much of the debate on the other side of this issue, many of the newspaper editorials, have spoken of the appropriation for tribal governments, so-called TPA, as an entitlement based on treaty--because there are several hundred treaties with various Indian tribes, the last of which was ratified in 1868--that we are in fact dealing with an entitlement, that we should not look at relative needs, we should not look at the ability to provide for governments through the resources of Indian tribes at all because this is a matter of treaty obligation between the Government of the United States and these various Indian tribes. I wish to make the point, as we look forward to a future debate on this issue, that there is no such treaty right. Mr. President, there is no such treaty right. We found one treaty with one tribe that calls for payment in perpetuity of several thousand dollars a year. Most Indian treaties, however--and we use here the treaty of Point Elliott in my own State, a treaty signed in 1855, that includes a clause very much like this one: In consideration of the above cession [that is the lands the Indians were signing away] the United States agree to pay to the said tribes and bands the sum of $150,000 in the following manner. And it sets out declining annual payments for a period of 20 years, ending, presumably, in 1875, or in 1876. That is the typical Indian treaty with respect to a fiscal obligation on the part of the people of the United States. Obviously, that period of time ran out over a century ago. The optimism with which it was signed, the implication being that by that time the Indians would be integrated into the larger society, did not take place, and the Congress of the United States has gone through several phases of attitudes toward Indian tribes, toward their integration, toward their self-determination and the like. We are now in a period of time in which the strong public opinion, and opinion in this Congress, is in favor of self-determination, conscious self- determination in the Indian institutions. The point I am making here is not to disagree with that policy. I think it is a perfectly appropriate policy and one that I have supported. The point that I am making here is that it is a discretionary policy, and that this three-quarters of a billion dollars is appropriated as any other discretionary account is in the Congress of the United States. Therefore, it is totally appropriate for us to determine whether we think the money is being well spent, whether we think it is being fairly distributed, whether we think there is a better formula, whether we think there should be some obligation on the part of wealthier tribes to pay all or part of the cost of their own tribal governments. So we have taken a sample number of tribes with respect to this year's distribution, about 20, on this chart. I may say that this is not one of these telescoped graphs that only works between No. 100 and No. 200. This graph goes from zero to $2,452. Tribal allocation per person to the Pequot Tribe in Connecticut from this year's distribution is $2,452. That is the tribe with the most successful gaming operation in the United States. Unemployment in the Pequot Tribe is zero. At the other end of the scale, the Fond du Lac Tribe, which gets $24 per person in its TPA allocation, has 67-percent unemployment. This, of course, doesn't include anything like all the tribes in the United States. I think it is a fair sampling, and any Member who desires to know where on this scale a tribe in his or her State falls can get that information through us. But you have a range of between $24 per capita and $2,452 per capita--a range of 100 to 1. The net result of failing to deal with that issue this year is that the ratio will be greater in 1998 in the bill we are voting on, it will be greater than it is at the present time. The original formula, I think, dates from sometime in the 1930's. Under those economic circumstances, having no relation to the present day, these tribes' governing authorities, of course, have various powers. Some provide more services than others do. But nonetheless, each year's change has made this system worse and is exacerbated. I will show you the same chart in a slightly different form, Mr. President. This form works from the Rosebuds in the Dakotas, which have the highest unemployment, 95 percent, down to the Pequots that have zero. In other words, to the best of our ability to determine need-- because we don't have all of the figures, unemployment figures have to be a shorthand here for need--the most needy tribe gets $225 per capita. Again, the Pequots, $2,400. But if we don't want to take that one, let's take this one in Alabama; it is $1,195. Interestingly enough, the second highest distribution here is to the tribe that has the second highest unemployment. But the obvious import of these charts is that there is simply no relationship whatsoever--no relationship whatsoever--between the need, the economic poverty, the unemployment on a given Indian reservation and the distribution of moneys to the governing body of that institution from the Federal Government pursuant to these TPA's. One further point, of course, in connection with this question about treaties, most of the tribes in the United States are not treaty tribes. The Senator from Alaska referred to the fact that by fiat, the administration created, I think, a couple of hundred new tribes in Alaska, none of which are treaty tribes, but all of which, by that administrative action, will in a year or so fall into this kind of distribution of money. So the distribution has nothing to do with whether or not tribes are treaty tribes or nontreaty tribes. The tribes really don't have anything to say about the issue. We are distributing the money at the present time in a manner that is highly irrational. As a consequence, Mr. President, Senator Stevens and I have authored a letter dated today to the Comptroller General of the United States in the General Accounting Office, asking for a General Accounting Office study of the system I have described here, how we got to that system and how we can do better. Our request does, of course, include in it a request to the GAO to make a determination, not only of the needs of the tribes, but of their ability to meet those needs with their own resources. We may well learn from the GAO that even it cannot answer that question, because the tribes will not release a sufficient degree of information for us to make an intelligent decision. Then we will be told what kind of legislation is necessary so that Congress can deal with this matter in a rational fashion. I ask unanimous consent that the letter that Senator Stevens and I have authored to the General Accounting Office be printed in the Record.

Mr. GORTON. I do want to say this, Mr. President. A number of compliments have been made about the way in which Members deal with issues that are highly controversial and on which they have great differences of opinion. I say, with respect to every one of those who have spoken here today, that I have gotten from each of them the greatest consideration, even when they have disagreed with me. Each of them holds his views as firmly as I do and as significantly as I do. The chairman of the committee has agreed, and will speak to that later, to dealing with a specific bill on the other subject. I haven't asked him to deal with this subject in his committee, but I rather suspect that he is going to wish to do so in order to be able to deal rationally and intelligently with this issue as well. So I have not gained the goal that I have set for myself when I was writing this bill to make substantive changes, but we are going to be able to vote these issues intelligently in the course of the next year in a way that has not been done in this Congress, certainly since I first arrived here in 1981 and probably for some time before that. I believe the debate on this issue is long overdue, Mr. President. I am persuaded, quite persuaded, that we can't engage in it in its full substantive fashion at the present time, for lack of information, and that what we are doing here is going to give us a greater ability to make our points at some time in the future. For their cooperation in seeing to it that we are moving forward on this issue, I thank each one of them, and we will be back here, I suspect, at some time in the future to debate this and the other issue more on its merits. Because the other issue is distinct from this one, I hope as soon as others who wish to speak on it have spoken, we will adopt the proposal, the amendment proposed by the Senator from Colorado, and then move on to the second one, and I will have a set of different remarks on that one. Mr. DOMENICI addressed the Chair.

Mr. GORTON. No. I think we are ready to vote on the amendment.

Mr. GORTON. Mr. President, section 120 of the bill is a section that conditioned tribal priority allocations on the abandonment of a doctrine called sovereign immunity on the part of Indian tribes. There has been much said during the course of the day about justice, about simple justice, about there being more important concerns than the letter of the law. With that proposition, I find myself in agreement. And the proposal with respect to sovereign immunity was aimed at just precisely that goal--simple justice. In fact, Mr. President, there is a letter to the editor in the Washington Post today that goes under the title of ``Simple Justice.'' I ask unanimous consent that this letter be printed in the Record at this point.

Mr. GORTON. Mr. President, I send an amendment to the desk sponsored by Senators Mack and Graham, and ask for its immediate consideration.

Mr. GORTON. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. GORTON. Mr. President, I believe this amendment has been cleared by both sides and we are prepared for its adoption.

Mr. GORTON. Mr. President, I move to reconsider the vote.

Mr. GORTON. Mr. President, I send an amendment to the desk for myself and Senator Byrd. This is a technical amendment regarding the Bureau of Land Management's Forest Ecosystems Health and Recovery Revolving Fund. The Recovery Fund is used for the planning, preparing and monitoring of salvage timber sales and forest ecosystem health and recovery activities. The amendment clarifies that the Federal share of any receipts derived from treatment funded by the account shall be deposited back into the Recovery Fund. A percentage of the receipts that are collected from salvage timber sales are returned to the States. That applies to only the Federal share of receipts. I ask unanimous consent the pending committee amendment be set aside and this amendment be considered.

Mr. GORTON. Mr. President, I share many of the sentiments expressed by my colleague from Arkansas. I believe that he has brought up an important issue, an issue that should not be decided simply by fiat from the President and the President's administration, but one that ought to be carefully considered here by the Congress. Without having read every word of his amendment, I am inclined to tell him that I agree with it. I must tell him at the same time, in this relatively empty Senate Chamber, as he knows, his amendment will be quite controversial. I am certain it will require a rollcall. For that reason, I am particularly happy that he did bring it up tonight so that other Members can consider its provisions so that it can be debated further tomorrow. But while I had said not too long ago that I did not know of a number of other amendments that will require a rollcall, I will have to amend that statement and say that I think that the amendment of the Senator from Arkansas will require a rollcall. I do hope that he and others will speak on it tomorrow. I just say that I think the statement he has made is correct, that this is an issue in which the Congress should be involved. With that, Mr. President, I suggest the absence of a quorum.

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GORTON. Mr. President, we are now on the Interior appropriations bill once again. I believe that the first vote on that bill will be on the Ashcroft-Helms amendment to strike the appropriation for the National Endowment for the Arts. There has been discussion of several other amendments relating to that endowment. I believe it appropriate to continue that debate until the cloture vote at noon. I know that the majority leader hopes, and I hope, that shortly after we get back on the Interior appropriations bill, after our FDA vote, that we will begin to vote on amendments relating to the National Endowment for the Arts. In any event, that is the subject at the present time. I invite all Members who are interested in any of the amendments on the National Endowment for the Arts to come to the floor and speak on that subject between now and noon. Mr. GREGG addressed the Chair.

Mr. GORTON. That is correct.

Mr. GORTON. Will the Senator yield for a question?

Mr. GORTON. But I take it, Mr. President, that the $700 million for the land and water conservation fund is, in fact, in that agreement, is that correct?

Mr. GORTON. So, I ask the Senator from New Mexico, then the bill that I drafted and is being debated on the floor here today regarding appropriations for the Department of the Interior includes both the $700 million for the land and water conservation fund and a specific mention and, therefore, a degree of priority, for the New World Mine and for the California redwood purchase; this bill, in fact, goes beyond and is more specific than the budget agreement itself, is that not correct?

Mr. GORTON. And so when the chairman of the Committee on Energy and Natural Resources, the Senator from Alaska [Mr. Murkowski], chairing the committee on which, incidentally, each of us serves as well, states that he has a number of questions about the very complicated transactions for these two projects proposed by the President and wishes to deal with those in the normal course of authorizing legislation, he, the Senator from Alaska, in the view of the Senator from New Mexico, is taking a quite reasonable position?

Mr. GORTON. The Senator from New Mexico believes, under those circumstances, we are obligated to keep our part of the agreement?

Mr. GORTON. Mr. President, we are less than 30 minutes from moving on to another subject, the cloture vote on the bill relating to the Food and Drug Administration. If I may, I would like to summarize where we are on this interesting and multifaceted debate on the National Endowment for the Arts. The Senator from Missouri, Mr. Ashcroft, who is present on the floor, and Senator Helms have proposed an amendment that will terminate the National Endowment for the Arts in much the same way as the House of Representatives has already voted. I hope that we will be able to vote on that amendment in not too great a time after the completion of whatever the majority leader seeks to do with respect to the Food and Drug Administration bill. The Senator from Missouri may very well tell us how much more time he thinks he needs on his amendment. After that, logically the next amendment would be that proposed by the Senator from Michigan [Mr. Abraham], which would also close down the National Endowment for the Arts but would transfer the money to, I believe, the National Park Service for the preservation of historic American treasures. The next proposal would be that of the Senators from Alabama and Arkansas who would essentially block grant the entire appropriation for the National Endowment to the States; following that the proposal by the Senator from Texas [Mrs. Hutchison], that would have 25 percent, roughly, governed by the National Endowment for the Arts here and 75 percent block granted for the States. Those are the proposals that have been discussed on the floor at some length yesterday afternoon and this morning. I hope that we can reach an orderly method for voting on each of those amendments so that the will of the Senate with respect to the National Endowment will be made known. I regret deeply to say that my partner on this bill, Senator Byrd, is indisposed today and will not be able to be here at all, something he regrets. He hopes that maybe at least some of these votes could be postponed until tomorrow. I will have to leave that up to the majority leader, who I think wants to move forward as quickly as we possibly can. It is appropriate now, however, I think, for me to state my own view at least on the four amendments that are in front of us. My views reflect those of the Appropriations Committee and, most particularly, my subcommittee. I believe the National Endowment for the Arts does in fact play a constructive role in culture in the United States. I believe that reforms in the last 2 or 3 years have cut down tremendously on some of the truly objectionable grants which were rightly objected to by the vast majority of the American people. So with respect to the first two amendments, I will vote no. I also am unable in my own mind to feel that we would somehow deal more sensitively if all of these grants were decentralized to State arts commissions. Finally, I find myself somewhat in sympathy with the proposal of the Senator from Texas. I believe that perhaps a greater focusing, but not a universal focusing, on State and regional arts organizations may well be appropriate but that there are also grants that are appropriately national in nature and that many of the institutional grantees, while they may be located in a particular city or a particular State, have an impact on the arts that goes far beyond the locale of their principal office, their museum, their symphony orchestra or their opera company. Because, however, the Ashcroft-Helms position has governed the House of Representatives, my inclination is to vote against all of these amendments that change the present system simply because we will have to take into account the views of the House of Representatives in a conference committee, a conference committee that I think is likely at least to come out with a proposal that is perhaps closer to that of the Senator from Texas than any other that I have heard at this point. So at the present time, unless I am persuaded to the contrary, Mr. President, I am going to suggest to the Members of this body that they leave the appropriation for the National Endowment for the Arts contained in the bill as it is before us now untouched and discuss the very important questions that all of them have raised with the House of Representatives that has taken a quite different view in a conference committee. With that, I yield the floor. Mr. ASHCROFT addressed the Chair.

Mr. GORTON

Mr. GORTON. As manager of the bill, I say to my colleague from North Carolina, I asked both the previous two Senators who spoke, and Senator Hutchison who preceded them, not to introduce their block grant amendments because it seemed to me most logical that the proposal of the Senator from North Carolina, which would effectively reflect the House position of abolishing an appropriation for the National Endowment for the Arts, logically ought to go first. So I believe the answer to the Senator's question is a committee amendment is the business and the amendment that the Senator from North Carolina proposes, I think, would be in order.

Mr. GORTON. Mr. President, I commend the Senator from Texas in proceeding in this fashion. As I announced previously, there are a number of amendments we expect with respect to the National Endowment for the Arts. I believe that the proposal by the Senator from Texas will be a perfecting amendment, that she is attempting to improve it. The logic in dealing with these amendments will be to deal with those amendments that strike or substantially cut funding for the endowment first. And so the willingness of the Senator from Texas to speak, as I am sure she will quite eloquently, to her proposition but not to introduce it yet will facilitate dealing with the matter when it comes to a vote in a more logical way.

Mr. GORTON. I thank the Senator from Ohio for his eloquent statement. I know how important this project is to Senator DeWine. As he has stated, we have talked about this project on several occasions over the past 2 months, and I must confess that the Senator's enthusiasm for his project has rubbed off on this Senator. As my colleagues may know, the Senator from Ohio grew up not far from where the Wright Brothers made their dreams of powered flight a reality. It also is no secret that the legacy of the Wright Brothers is very much alive and well in my own State of Washington. Madam President, I want to assure the Senator from Ohio that he has convinced me of the merits of this effort to restore this important historical landmark in time for the centennial celebration of powered flight less than 6 years from now. I am strongly inclined to support his position in our inevitable conference with the House of Representatives on the subject. I also urge my friends from Ohio to keep me and the members of my subcommittee informed of his continued efforts and those of the Dayton community as it prepares for the celebration in the year 2003. Mr. DeWINE addressed the Chair.